Negotiation: Getting Ambushed and Railroaded

A real case:

Agency accepts the rates, hands down the test (a.k.a. free sample), sends the draft contract. The contract is 7 pages long and contains a lot of legalese. The provisions are markedly detailed and restrictive and some not quite fitting the situation of a freelance teleworker completing translation assignments for his project manager. There is a lot about compliance with the agency's applicable laws, and the way the translator is referred to as a 'Consultant' rings a bell, suggesting it's meant to invoke some specific legal consequences that are not immediately obvious.Translator submits a reasonable — and reasoned — list of proposed changes, explaining the whys and wherefores of them, as well as explaining why there is a problem and supporting it with some concrete, good arguments. There is hoping for an understanding.Agency business staff says the list is extensive (mere quantity, nothing more) even before forwarding it to the executive or legal. Also they understand if this will make collaboration impossible etc., so essentially no hard feelings if you can't accept our contract.Translator doesn't want to lose the deal, reduces the list of changes. PM/recruiter has less material to bother exec/legal with — effectively cutting down the number of problems without even addressing their substance. How ruthlessly effective! And the agency may even be very conscious of the small win achieved thereby, as it shows the translator doesn't want to lose the deal and may be prodded around. An atmosphere of some urgency further helped the railroading, while no real haste had actually been necessary at that stage since not even any real job was waiting in the background.

There is an old adage about romantic relationships to the effect that the party who cares less controls the relationship. Both in romance and in business the same is true of the party who has less to lose (e.g. the battered spouse who wouldn't be able to afford the bills for living alone).

The power of perception in railroading

However, it isn't even necessary that the railroaded party (the 'railee') really have more to lose than the railroading party (the 'railor'). Perception will often do just as well, or almost, as facts. And when you get ambushed, you have less time to look around, watch, see, listen and hear, so your perception can misguide you. You can become protective or apprehensive of the wrong things, misestimate their nature or weight. The heightened rhythm of the situation may be used against you.

Old and worn but still working just as fine: artificial rush

And the cheapest shot in negotiation — perhaps only preceded by the, '(...) or no deal,' threat — is an artificial shortage of time for decision. The silly here and now. Like there won't be a somewhere else or a tomorrow.

Not to be confused with legitimate time-limited opportunities (which exist)

Well, yes, short windows of unique opportunity do exist. One does need to learn to identify such opportunities that need to be seized quickly or they will pass. For example, when a not so established translator with far less than a full calendar receives an inquiry about a valuable job that comes with some concessions or perhaps is somewhat more complex on the technical or logistical (organisational) side. Alternatively, there's a fast-paced recruitment procedure with a somewhat onerous sample-testing and referral-checking admission process, but there is also a nagging suspicion of some serious workload waiting to be claimed by those who make the effort.

Take it with a pinch of salt, mostly

Much of the time, however, tomorrow will be just like today. And there'll be more potential clients just like the one talking to you, or better. Much of the time the golden opportunities will turn out to have been cheep pewter with a splash of paint over the surface. Or just a favourable light.

Bottom line is: Don't allow them to dictate the terms of your negotiation.

The longer version is: Don't negotiate on their terms. It's not just about a potential one-sided outcome. A one-sided negotiation process leads to one-sided negotiation outcomes (sort of like biased decisions by a trial judge may lead to biased verdicts).

Don't concede all of the territory just because it's just negotiation and not yet the deal itself

As a negotiating partner you have a right to shape the process as well as they do — and co-shape, not only accept or refuse — the outcome of it. Shake up their designed rules of the game just so they don't get to be railroading you towards some conclusions which you don't want to be making and impressions you don't want to be forming. Make them need to adapt too.

When neither of you have the advantage the field is already level

The field is more level when both of you need to think and adapt and neither of you has the benefit of knowing what will likely follow (for example due to having designed or analysed the scenario beforehand). Somebody who has planned ahead is an advantaged position: playing totally on his own turf and even on his own schedule and according to his own dictated rules of engagement. So deny him that.

You don't even need to have it your way, it already substantially levels the field when the other party doesn't get to have any special advantage, e.g. one resulting from having planned the negotiation.

If this sounds too complex, just learn not to be influenced too easily by what your negotiating partners say or how they say it. Question your instinctive or intuitive or face-value impressions and interpretations — they may be legitimate signs of something good or bad, but they may also be something the other side wants you to be thinking.

And above all don't be steered into thinking there is some special urgency when there isn't really any. Like I said before, artificial urgency is something which forces you into bad decisions because it artificially cuts your deliberation time short, so your decision is based on less thinking, less clarity, a less than full picture of what the deal expects of you.

Don't take it for granted that it is necessarily true what they say about your perspectives or their own, or about the situation in the market in general, even if they are experts and you aren't. I'm not saying they're lying (although lying happens too), but there's a chance they're just simply talking from their own perspective and perhaps even pushing it on you, or being delusional, or going through a PR flow chart somebody designed for them.

Claim your deliberation time. It's notyour fault they waited until the last moment with approaching you. It's not your fault their contract is 7- or 10-page long. It's not your fault they hired a lawyer who can't write in normal understandable language. Just because they even might have an urgent situation for real does not mean you owe it to them to accept their terms.

If they won't accept reasonable, standard terms, then they are rejecting your help. You are not denying them.Learn to separate helping people from allowing them to dictate the terms of your help, and certainly don't allow them to guilt-trip you into thinking you're an unhelpful person if you don't cave in to their demands and sign something which gives them an unwarranted advantage (or outright dominance in your relationship).

The above is also true when you have already done a job for someone who now wants a written contract. You owe it to that client to own up to your work, confirm the receipt of your fee, give reasonable terms if no specific had been discussed before, but you certainly don't owe it to your client to sign whatever the client desires. If the client thinks you owe it because of having accepted and performed the job, then the client has it perfectly backwards. In reality, it was the client who accepted the default law and possibly even your own Terms of Service (if they are distinct and accessible enough, e.g. linked in your e-mail signature) by placing the job with you. (As opposed to you becoming the client's property.)

Recap:

You are ambushed when the other party chooses the time, the place, the method and the extent you'll be negotiating. In short: if the negotiation is planned for, designed, by the other party. The advantage consists in being prepared and knowing what would follow. Or just having thought about the possible scenarios before and knowing how to react to each approximate scenario, even if it won't be carried out to the letter. One of the cheapest but still most effective negotiation tricks — and a large part of a successful ambush — is cutting your deliberation time short and railroading you into a quick decision which may not be in your best interests (especially when it agrees with what the other party wants of you, and especially the exact terms of getting it).

You deny the advantage by claiming your thinking time and by taking an active part in the negotiation and in shaping the negotiation process. You can also deny it by upsetting any predictable scenarios the other party may have designed or analysed in advance before the negotiation even started, down to such simple things as taking a different seat from the one offered to you when you meet face-to-face.

If you don't have a plan, you're already levelling the field by making it so that they don't effectively have a plan either (because their plan is no longer working or relevant).

Disclaimers and all that jazz

REPOSTING AND RIGHTS: Don't worry about copyrights and stuff when printing or sharing these posts for your own benefit or that of your friends. In fact, the point of them is to be read. You can also repost them whole if you think that will reach the audience better than linking to my blog here, or if you want to host a vigorous discussion on the subject among your commenters; it's all fine as long as you don't make a blog that's simply a copy of my blog. Feel free to translate the posts, too, or adapt them, just please mention the fact you did so on your own. Understand, however, that by reposting my posts in any way or form, including paper, you will not gain any sort of copyright or interest in my own copyright, let alone moral rights, other than limited protection of any significant value you actually add, where any such rights such as you may so acquire shall not restrict my own rights and freedom as the author or in any way impede the free, unpaid circulation of the material I created. Always credit me as the author.

NOT PROOFREAD OR EDITED: The posts are not always edited and proofread before posting. They are intended to represent the typical standard of blogs posts rather than printed works; I apologize for any inconvenience you may experience as a result. I simply prefer to write another post or five rather than either go back and reread old stuff or complete five rounds of editing before hitting the send button; this is more or less the point of having a blog. Still welcome to let me know if you find a typo or if anything's unclear, which may very well occasionally be the case due to the timing, such as late at night or in between urgent projects. Hence, before reposting any of this in a more serious setting than a blog or forum post, please drop me a line to give me the chance to apply some finishing touch or even ask me to write a proper article, which I'll be happy to do subject to time constraints.

NO ADVICE, NO CLIENT RELATIONSHIP: Nothing here consitutes legal, business, marketing, career or any other advice, at least not in the sense of establishing a lawyer-client or consultant-client relationship, not in the least because I didn't get a dime and because any implied contract is (hereby, herewith, etc.) expressly disclaimed. If what you find here is useful and informs your course of action, you still need to get proper legal advice appropriate to your jurisdiction and your unique factual situation, without exception. Likewise, consult such other advisors as are appropriate for proper business, marketing, career or other advice relevant to your situation. Whether or not you consult them, you agree to assume and do assume the responsibility and risk, with the consequence being, without limitation, that you can't sue me (and agree not to try) on the grounds of having relied on anything whatsoever on this blog.

NO RESPONSIBILITY FOR THIRD-PARTY SITES: Any links on this blog that don't expressly lead to other posts here should be presumed to lead to external sites that are outside my control. I am not responsible for the contents of such sites or their availability. Linking does not imply endorsement. By clicking on a link you expressly and enthusiastically declare for the benefit of any pesky government official anywhere that you did so out of the pure, unadulterated, spontaneous desire of your heart miraculously coupled with the informed and deliberate consent of your conscious, sovereign, unbroken will.

NO RESPONSIBILITY FOR COMMENTS YOU READ: If you find something illegal, obscene, hateful, etc., in the comments, let me know and, if I agree with your assessment, I'll axe the comment. You are hereby warned that I don't control the comments otherwise, they are the product of their own authors' expression. If you don't accept the risk that you might see something objectionable, don't read the comments.

YOUR RESPONSIBILITY FOR COMMENTS YOU POST: By posting a comment you agree to assume and do assume full and sole responsibility at law for posting whatever you post, even if I saw it and did not delete it, and even though you also agree that I may delete any comment at ultimately my sole discretion, with no liability to you, though I'll normally do so only if I find it to be spammy or more than just a little offensive. Further, you agree that if you subsequently decide to delete or modify your comment, you will need to do so on your own, and agree to do so on your own without involving me in the process. You agree not to post anything which is illegal, hateful, defamatory, spammy, in breach of a confidentiality obligation (or otherwise contains anything you are not free to disclose, including without limitation personal data) or infringes on anyone's legally protected rights. Advertising is forbidden.